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England and Wales 'no fault' divorce plans re-enter parliament

Out-Law News | 09 Jan 2020 | 5:46 pm | 2 min. read

Legislation which would enable spouses in England and Wales to divorce without having to make allegations about the other's conduct or show a lengthy period of separation has been reintroduced to the UK parliament following the general election.

The Divorce, Dissolution and Separation Bill had partly progressed through the House of Commons before the previous parliament was dissolved ahead of December's election. The new bill will begin its parliamentary passage in the House of Lords.

The government, which has described the legislation as "the biggest shake-up of divorce laws for 50 years", said that the changes would reduce the impact of unnecessary conflict on couples and their children. 'No fault' divorce already exists in Scotland where a marriage has irretrievably broken down.

Ingram Sarah July_2019

Sarah Ingram

Senior Associate

These changes, if approved, would have several benefits for divorcing couples and their families, reducing the number of contested divorces and resulting in swifter financial agreements being reached between divorcing couples.

Private wealth and family law expert Sarah Ingram of Pinsent Masons, the law firm behind Out-Law, said that progress on the legislation was likely to be slow, "despite this bill in particular having a lot of popular support".

"Divorce law changes are always very low on the government's agenda: the Matrimonial Causes Act, which sets out the current law, has not been updated since 1973, and a large number of bills raised in relation to divorce end up being dropped," she said.

"These changes, if approved, would have several benefits for divorcing couples and their families, reducing the number of contested divorces and resulting in swifter financial agreements being reached between divorcing couples, with benefits including a reduction in the scope for wealthy individuals to dissipate their assets. Removing the need to prove facts such as adultery or unreasonable behaviour should also help to keep private details out of court hearings, which is particularly important to high profile couples," she said.

Under current law, couples seeking to divorce must provide evidence of one or more of five facts to establish the irretrievable breakdown of their marriage. These are adultery, desertion or unreasonable behaviour by one of the spouses; two years' separation if both parties consent; or five years' separation without consent.

The government has proposed instead allowing one or both spouses to initiate a divorce by making a statement that the marriage has irretrievably broken down. It intends to retain the existing two-stage process of decree nisi followed by decree absolute. A new minimum period of 20 weeks from the start of proceedings before the court will be able to make a conditional order of divorce, in order to provide couples with a period to reflect on their decision and to seek counselling and mediation where appropriate.

The new law would also abolish the ability to contest a divorce, which the government said would protect victims of domestic abuse. Divorce applications could still be challenged on jurisdictional or procedural grounds, or on the basis of fraud, coercion or legal validity of the marriage.

Parallel changes would be made to the law governing the dissolution of a civil partnership, which broadly mirrors the legal process for obtaining a divorce. As of 31 December 2019, opposite sex couples have been able to enter into a civil partnership as an alternative to marriage.